1. This Second appeal is filed by the appellant (original defendant) against the Judgment and Order, dated 8.5.2009 passed by Adhoc District Judge4, Nagpur in Regular Civil Appeal No.607 of 2008, which was allowed and whereby the decree was granted for specific performance. The said First Appeal arose from the Judgment and Order, dated 20.9.2008 passed by the 3rd Civil Judge (Sr.Dn.), Nagpur (trial Court) in Regular Civil Suit No. 34 of 2004. The suit was partly decreed for refund of earnest sum only with interest.

2. Brief facts are as under :

An agreement to sell (Exh. 30) in respect of the suit land i.e. agricultural land bearing Survey No. 74, admeasuring 1 H. 62 R situated at village Khedi, District Nagpur was entered into on 20.12.2000 to sell the suit land for the consideration of Rs.1,89,000/-, out of which Rs. 50,000/- as earnest sum was paid on 20.12.2000. However, on 10.4.2001, Sale deed (Exh.48) was executed by defendant no.1 in favour of defendant nos.2 & 3. The plaintiff had sued for specific performance of the suit agreement.

3. The prayer in the suit was for specific performance of the agreement to sell the suit land pursuant to the agreement (Exh.30). Suit was defended on the ground that the plaintiff had advanced a sum of Rs. 50,000/- to defendant no.1 and that the said agreement to sell, dated 21.8.2000 was not duly stamped and was bogus.

4. The trial Court recorded findings in favour of the plaintiff that the agreement to sell, dated 21.8.2000 was proved and earnest sum of Rs 50,000/- was paid by cheque.

The trial Court, however, curiously recorded finding that the sum was advanced as loan and in view of the subsequent sale deed of the suit land in favour of defendant nos.2 & 3 executed by defendant no.1, the trial Court refused to grant the decree for specific performance.

5. The first Appellate Court’s findings were challenged on the ground that the sale deed (Exh.48) executed was admissible document in evidence and it was not necessary to examine the attesting witnesses thereof. The appellant also challenged admissibility of the agreement to sell (Exh.30) in evidence. On behalf of the respondent/plaintiff, it is contended that the document could not have been questioned as, in view of Section 34 of the Bombay Stamp Act, duty and penalty is payable for admissibility of the document and when the compliance is made, in view of the Section 35 of the Stamp Act, admissibility of the document cannot be questioned.

6. The present appeal was admitted on the following substantial question of law :

1. Whether the first appellate Court was justified in holding that agreement dated 21.8.2000 (Exh.48) between defendant no 1 and defendant nos. 2 and 3 cannot be admitted in evidence as the same is not duly stamped when the respondent/plaintiff did not raise any objection when the said agreement dated 21.8.2000 was being exhibited in the evidence adduced by the appellant/defendant ?

2. Whether the first appellate Court was right in granting the decree for specific performance of contract in favour of the plaintiff in absence of plea that appellant nos. 2 & 3 had purchased the suit property with notice of agreement (Exh. 30), dated 20.12.2000 and that the sale by defendant no 1 in favour of defendant nos. 2 & 3 was sham and bogus and only an arrangement ? I must answer the questions raised in the affirmative for the following reasons :

7. On behalf of the appellants it is submitted that there was hand loan of Rs 50,000/- advanced from the plaintiff and the agreement to sell was not duly proved and therefore, the first Appellate Court ought not to have decreed the suit.

8. On behalf of the respondent, it is urged that there is no substantial question of law to entertain the Second Appeal. It is liable to be dismissed in view of Section 100 (5) of the Code of Civil Procedure. On merits, it is submitted that, in both the Courts below, the plea by the defendant of hand loan was proved false. Furthermore, there was no